Metropolitan News-Enterprise


Friday, March 3, 2017


Page 1


Officials’ Private Emails May Be Public Records—S.C.


From Staff and Wire Service Reports


Emails relating to government business, sent to or from officials’ private email accounts, are not necessarily shielded from disclosure under the California Public Records Act, a unanimous state Supreme Court ruled yesterday.

The ruling came in a lawsuit against the City of San Jose by community activist Ted Smith. A Santa Clara Superior Court judge ruled that Smith was entitled to documents concerning redevelopment efforts in downtown San Jose, including emails and text messages “sent or received on private electronic devices used by” the mayor, two city council members, and their staffs.

The Sixth District Court of Appeal reversed, but the Supreme Court sent the case back to the lower courts for further proceedings.

‘Today’s Environment’

Determining whether an electronic communication is a public record under the 1968 CPRA, Justice Carol Corrigan wrote, “requires recognition that, in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”

Not all emails discussing public business, she said, will rise to the level of a public record.

“For example, depending on the context, an email to a spouse complaining ‘my coworker is an idiot’ would likely not be a public record,” Corrigan wrote. “Conversely, an email to a superior reporting the coworker’s mismanagement of an agency project might well be.”

She went on to say:

“Resolution of the question, particularly when writings are kept in personal accounts, will often involve an examination of several factors, including the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.”

A more definitive resolution is unnecessary in the present litigation, she said, because the city argued that all emails sent to or from private accounts are outside the scope of the statute. That argument cannot be squared with the text and purpose of the CPRA, or with Proposition 59, which the voters approved in 2004 and which elevated the right to access to public records to constitutional status, Corrigan said.

Practical Challenges

San Jose City Attorney Richard Doyle said he was not surprised by the decision, but that it raised practical challenges for cities and counties.

“The question is how do we access those communications on personal devices without the government being overly intrusive,” he said. “I don’t expect and intend to have people turn over their phones.”

The use of private email accounts by public officials has faced scrutiny in recent years, with accusations that some were using them as a way to avoid disclosure. Hillary Clinton was sharply criticized during the presidential campaign for using a private email account while at the State Department.

In a survey by The Associated Press two years ago, Gov. Jerry Brown, Lt. Gov. Gavin Newsom and other top elected officials in California acknowledged using personal email accounts to conduct government business.

Newsom’s office has previously said his personal emails are also searched when considering Public Records Act requests. The state Supreme Court ruling would apply to those officials as well as lower level city, county and state officials and public employees.

Legislature Unaffected

It does not apply to the state Legislature, which has its own public records policy.

“This ruling is a model for giving government transparency laws meaning in the digital age,” said Matthew Cagle, an attorney at the American Civil Liberties Union of Northern California, which filed an amicus brief in the case, along with other ACLU affiliates and the Electronic Frontier Foundation. A number of public employee unions joined in a brief supporting San Jose.

Many state courts and attorneys general have concluded that official communications on personal devices are subject to public disclosure. And at the federal level, an appeals court ruled last year that work-related emails from a private account used by the White House’s top science adviser were subject to disclosure under federal open records laws.

Opponents have raised privacy concerns and said public officials sometimes need confidentiality to discuss unpopular views.

They have also argued that sifting through employees’ private accounts and devices in response to requests for records would be expensive and burdensome.

San Jose said in its briefing that forcing employees to turn over their passwords to inspect communications on private devices would be akin to making them hand over their house keys.

Corrigan said that privacy concerns should be addressed on a case-by-case basis and officials could redact any personal information not related to the conduct of public business.

She said employees could also search their own personal accounts in response to records requests.

“If communications sent through personal accounts were categorically excluded from the CPRA, government officials could hide their most sensitive, and potentially damning, discussions in such accounts,” the justice said.

The case is City of San Jose v. Superior Court (Smith), 17 S.O.S. 1097.


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